Tessling, Brown, and A.M.: Towards a Principled Approach to Section 8

Abstract

This article analyzes the Supreme Court of Canada's search-and-seizure jurisprudence in anticipation of the Court's forthcoming decisions on the admissibility of evidence obtained by police dog searches in Brown and A.M. After reviewing the historical development of s. 8, the author then goes on to discuss the strengths and weaknesses of the Court's analysis of sense-enhancing aids and the reasonable expectation of privacy' in Tessling. The article ultimately argues that the Court ought to eschew a case-by-case model for establishing the existence of areasonable expectation of privacy, and go beyond the facts of Brown and A.M. in order to adopt a more principled approach to s. 8. The author maintains that a more principled approach is necessary because stale actors need clearer guidance if they are to successfully balance individual privacy with the use of sense enhancing aids.